- The Washington Times - Friday, February 13, 2009

COLUMBIA, S.C. | Even if a South Carolina sheriff is successful in building a marijuana case against swimming superstar Michael Phelps, it might be hard to make the charges stick, defense attorneys say.

The case took a turn Thursday when lawyers for two people said their clients were among eight arrested last week and questioned at length about the November party near the University of South Carolina where Phelps was photographed smoking from a marijuana pipe. At the time, the men were renters at the house.

The effort to prosecute Phelps on what would be at most a minor drug charge seems extreme compared to similar cases, lawyers said, and have led some to question whether the sheriff is being overzealous because he’s dealing with a celebrity.

“The efforts that are being made here are unlike anything I’ve ever seen before,” said Jack Swerling, a defense attorney in South Carolina. “I know Leon Lott. I know him to be an honorable guy. I’ve known him for 30 something years. But the efforts here are extraordinary on simple possession cases.”

After the photo of Phelps was published Feb. 1, Lott, the Richland County Sheriff, said his office would investigate and possibly charge Phelps, though officials have not specified what the offense might be. Since then, authorities have released little information. The sheriff’s department refused to talk again Thursday.

Lott has made fighting drug crimes a central plank of his career. He rose from patrol officer to captain of the narcotics division in the early 1990s and was well-known in the county for wearing stylish suits like the drug agents on “Miami Vice” and driving a Porsche seized from a drug dealer. He was elected sheriff in 1996.

Lawyers for the two men say they were questioned almost exclusively about Phelps and charged with misdemeanor marijuana possession.

Authorities haven’t contacted the swimmer, who issued an apology for his behavior earlier this month, one of his agents said.

“Michael has not been contacted, and we are not going to speculate,” agent Drew Johnson said.

Defense attorney Dick Harpootlian and fellow defense attorney Joseph McCulloch said deputies searched at least two houses. The men told their lawyers the raids went down like a major drug bust, and 12 deputies burst into the home with guns drawn, pulling small amounts of marijuana from those arrested. Several computers and storage devices were also seized, Harpootlian said.

The lawyers did not release the names of their clients, but Harpootlian said his client didn’t even see Phelps smoke marijuana at the party. McCulloch said his client was out of town and only lived at the home when the party happened. Both men have since moved.

“After they arrested him, they didn’t ask him where did you get the marijuana or who sold it to you. Almost all the questions they asked him were about Michael Phelps,” Harpootlian said. He added: “It was like they were busting the biggest heroin distributor in the country.”

The investigators appear to be trying to build a case against Phelps from others - a tactic normally used to bring down drug dealers with a large amounts of cocaine or methamphetamine, not someone who smoked marijuana five months ago, said Chip Price, a Greenville attorney who has dealt with drug cases for 33 years.

“Never have I seen anything like this on a simple marijuana case,” Price said.

McCulloch, who said his client was out of town at the time, doubted that anything his client told authorities would assist them in the case against Phelps.

“It seems to me that Richland County has a host of its own crime problems much more serious than a kid featured in a photograph with a bong in his hand,” he said.

Investigators don’t need to have the marijuana Phelps may have had that night to make a case against him, although the lack of physical evidence makes things a lot tougher. They will need several witnesses saying they were at the party, smoked marijuana in that pipe and saw Phelps smoke it too, Swerling said.

There’s one more problem with the case, too. Even if Phelps is charged, authorities may not be able to get him back to South Carolina to face a judge. State law allows extradition only for charges that carry more than a year in prison - and possession of one ounce or less of marijuana is a misdemeanor that carries 30 days in jail for first offenders.

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